State ex rel. Trost v. Schinz

• Decision Date: 05 March 1935
• Citation: 217 Wis. 576,259 N.W. 601
• Parties: STATE EX REL. TROST v. SCHINZ, JUDGE.
• Court: Wisconsin Supreme Court

217 Wis. 576

259 N.W. 601

STATE EX REL. TROST

v.SCHINZ, JUDGE.

Supreme Court of Wisconsin.

March 5, 1935.

This is an original action begun by the petitioner, Hugo J. Trost, who prays that a peremptory writ of mandamus issue commanding the circuit court for Milwaukee county (Walter Schinz, Circuit Judge) to enter an order changing the place of trial of a certain action there pending on appeal from the civil court of Milwaukee county to the circuit court for Ozaukee county, where the defendant in said action (the petitioner here) resides.Clarence P. Nett, of Milwaukee, for petitioner.

Gold & McCann and Morris Karon, all of Milwaukee (John C. Love, of Waukesha, of counsel), for defendant.

NELSON, Justice.

It appears, from the allegations of the petition and the return of Walter Schinz, circuit judge, to the alternative writ of mandamus heretofore issued, that on the 18th day of April, 1933, Dr. W. C. F. Witte, as plaintiff, commenced an action in the civil court of Milwaukee county against Hugo J. Trost, as defendant, to recover the sum of $438 alleged to be due him for professional services rendered to Mrs. Trost, at the special instance and request of the defendant; that on April 24, 1933, the defendant filed his answer; that on September 20, 1933, judgment was entered in said court in favor of the plaintiff and against the defendant, for the sum of $512.60; that thereafter the defendant appealed from said judgment to the circuit court for Milwaukee county; that thereafter, at the first term at which such appeal was triable, and in asserted compliance with the provisions of section 28, subd. 3a, of the Civil Court Act (Laws 1909, c. 549, § 28, subd. 3a, as added by Laws 1913, c. 261), and section 261.07, 1931 Stats., the defendant obtained an order requiring the plaintiff to show cause why the place of trial of said action should not be changed to the circuit court for Ozaukee county; that prior to the date of the order to show cause (motion) no demand in writing to change the place of trial was made or served upon the plaintiff; and that the circuit court refused to change the place of trial, because the defendant had not served upon the plaintiff a written demand that the trial be had within Ozaukee county, prior to making his motion.

The question for decision is whether, in actions commenced in the civil court of Milwaukee county, and appealed to the circuit court, a nonresident defendant can compel a change of the place of trial to the county of his residence without first demanding in writing that the trial be had within the county of his residence so as to permit the plaintiff to serve his written consent to such change or to specify to what county the action should be removed, under his option to name one of two or more counties in which the action may properly be tried.

To determine the question, several statutes must be construed. Section 261.04, which relates to the change of the place of trial of actions commenced in the circuit court, provides:

“ Change by court. The court or the presiding judge thereof may change the place of trial in the following cases:

(1) Where the county designated for that purpose in the complaint is not the proper county and the defendant has moved within the time limited in section 261.03.”

Section 261.03, provides: “ Change of place of trial by consent. When the county designated in the summons or complaint in any action is not the proper place of trial thereof, * * * the defendant may, within twenty days after the service of the complaint, serve upon the attorney for the plaintiff a demand in writing that the trial be had within the proper county, specifying it, unless there be more than one such county, and the reason therefor. Within five days after service of such demand the plaintiff's attorney may serve a written consent that the place of trial be changed, and specify to what county, having the option to name one of two or more in which it may be properly triable, and such consent shall change the place of trial accordingly. If the plaintiff's consent be not so served the defendant may, within twenty days after the service of his demand, move to change the place of trial, and shall have costs if his motion be granted.”

Section 261.07, 1931 Stats., which was in effect when the order to show cause was made, is as follows: “ Justice court appeals; change of venue. The circuit court and any county court having civil jurisdiction shall change the place of trial of any action commenced before a justice of the peace or municipal court by process personally served, or wherein the defendant shall enter his appearance in such justice or municipal court upon motion of the defendant made at the first term at which the action shall be noticed for trial, upon application in like manner and for like causes as cases originally brought in the circiut court.” (Italics ours.)

So much of section 28, subd. 3a, of the Civil Court Act as need be considered is as follows: “On any appeal from said civil court to the circuit Court of Milwaukee county, the defendant or defendants, if they be all nonresidents of the county of Milwaukee and reside in some other county of the state of Wisconsin...